Supreme Court of the RF recognized the legality of taxpayer debt collection from its related person

At the end of November 2015 the Russian Federal Tax Service submitted the decision of the Supreme Court of the RF from 02.11.2015 on the case №А40-153792/2014 to local inspections and departments, in which the court recognizes as lawful the recovery of taxpayer's debt from its related party by a tax authority. This decision is recommended for use by all bodies of the tax control in order to enhance the efficiency of the collection of tax arrears.

According to the general principle, a taxpayer must fulfill the obligation to pay tax on her/his own, and compulsory collection of tax arrears is carried out from a taxpayer-debtor. However, in the case of interrelated relationships between companies, the tax debt can be recovered in a court of law not only from a debtor itself, but also from related parties or its participants.

The procedure, regulating the recovery of unpaid tax from related persons, has been introduced since July 30, 2013 in a new version of paragraph 2 of Article 45 of the Tax Code of the RF.

In its turn, the definition of interdependence of parties is established in Article 20 of the Tax Code of the RF. As a general rule, for tax purposes the individuals or organizations, the relationships between which can affect their operating results, are recognized as related persons. In particular, the organizations directly or indirectly involved in other companies with a total share of such participation of more than 20% may be recognized as related parties. 

In cases of indirect participation, the shares of the participation of one company into another are defined as follows:

1. all direct sequences of participation of each previous organization in each subsequent are determined;

2. the shares of direct participation are calculated;

3. the product of direct participation is calculated. 

In addition, the individuals are recognized as related parties, who are subordinate to each other on an official position or are in marital relationships or in relationships of kinship, in accordance with the family legislation of the Russian Federation.

Otherwise, only in a court of law, the persons, the relations between which may affect the results of transactions of selling goods, works or services, may be recognized as related parties.

As to the above mentioned decision of the Supreme Court of the RF, its essence reduces to the following: in the result of field tax inspection of a taxpayer there was exposed a significant tax in default and it was decided to collect debts from a related person. The court recognized as a proven the fact of interdependence and affiliation of companies on common founder and General Director, single virtual address, contact phones, website and the type of activity. Accordingly, it was proved a set of conditions, under which the recovery of tax debt is carried out from a dependent person.

To protect yourselves from «unexpected» recovery of funds in similar situations will help the service «Links» of the Information and analytical system Globas-i®, allowing you identify related persons among counterparties quickly and with minimum expense.

Legislative changes, regulating electronic workflow standards

Among main legislative acts, regulating the use of electronic workflow in Russia, are:  

  • Federal Law No. 149-FZ of July 27, 2006 "On Information, Information Technologies and the Protection of Information" (as amended of July 27, 2010; April 6, July 21, 2011; July 28, 2012; April 5, June 7, July 2, December 28, 2013; May 5, July 21, November 24, December 31, 2014; June 29, July 13 2015;
  • The Federal Law No. 63-FZ of April 6, 2011 "On electronic signature" (last edition from 30.12.2015); 
  • Civil Code of the Russian Federation, which sets the rules for data exchange between the enterprises and the use of electronic digital signature for authentication information;  
  • Civil Procedure Code of the Russian Federation and Arbitral Procedural Code of the Russian Federation, which consider the possibility of digital documents provision as evidence in case of disputes between organizations.  

Electronic workflow legislation has significantly changed within 2015-2016.

Thus, since 1 January the list of companies, which are obligated to send the reports in electronic format to the tax authorities, has expanded. All companies with staff number more than 25 people are required to do it now. The sanctions for violations while submitting calculations for personal income tax are tightened. The sanctions are provided for late submission or inaccurate information. In case of the delay for more than 10 days, the bank account transactions and electronic funds transfer will be suspended.

According to the Federal Law No. 452-FZ of December 29, 2014 "On the amendments to Article 165 of Part 2 of the Tax Code of the Russian Federation" and the order of the Federal Tax Service №ММВ-7-15/427 of September 30, 2015, from 1 October 2015 verification of zero VAT rate application during export was simplified. Instead of paper copies of transportation, shipping and other documents the exporters can provide the registers of these documents in electronic form. Data from the registers are compared with the data of the Federal customs service of Russia. In case of any differences tax authorities can request the original documents. If the originals haven’t been provided within 20 days the zero rate is considered unconfirmed.

Till April 1, 2016 the universal transfer format for electronic workflow with tax authorities will be approved by the Federal Tax Service. It will include the invoice and accounting source document. The type form of the universal transfer format is reflected in the letter of the Federal Tax Service of October 21, 2013 №ММВ-20-3/96 “On absence of tax risks when applying the primary document drawn up on the basis of the invoice”. In 2016 the Federal Tax Service is also planning to approve other electronic formats of original documents. 

According to the experts, the possibility of providing to the tax authorities of all primary documents in electronic format (including documents of other authorities or international organizations) can significantly cut the costs of taxpayers on accounting records maintenance and increase the workforce productivity in this area. On the other hand, it will allow the tax authorities to reduce the desk audit periods and increase the quality control of tax payment.

Besides, in accordance with Federal Law No. 391-FZ of December 29, 2015 "On Amendments to Certain Legislative Acts of the Russian Federation", since 1 January 2016 an article 44.2 "Electronic notarial act" "Bases of the legislation of the Russian Federation about the notariate" came into force.

According to the article, the notary can make a notarial act by making a notarial document in electronic form. Individuals and legal entities will be able to assess the significance of this innovation in the nearest future. To get the certified electronic document you need personal qualified electronic signature.

Electronic signatures for individuals and legal entities are issued by the certification authorities.  In 2016 the requirements to certification authorities are significantly tightened. Now certification authority must have 7 mln RUB of net assets (1.5 mln RUB earlier).  The sum of liability insurance increased from 1.5 mln to minimum 30 mln and maximum 100 mln RUB. According to the experts, this can be a serious problem for small regional certification authorities. As a result, the market of certification authority services can be reduced by half.

According to the Ministry of Telecom and Mass Communications of the Russian Federation, 402 enterprises are registered in the Register of accredited certification authorities at the moment. You can get acquainted with their activities by subscribing on the Information and Analytical system Globas-i.